Freedom to operate Search also goes by the name of patent clearance search. No matter what do you call them, the primary goal of executing this search is to decide if the technology, design, or process infringes any of the issued or pending applications of a patent. To put it simply, an FTO patent search is one of the best ways for determining that the process or the product will be infringing any patent that is already present in the market. Your product might be still under process or developed, but this search will clear your path in the patent application. The FTO searching pattern helps an investor or an organization to know early if there is any patent present covering the technology, process, product, or design of the owner.
When To Conduct A Freedom To Operate (FTO) Search?
Usually, freedom to operate search should be executed as early as possible of your product, design, and technology development. Doing this process will offer the inventor two benefits of avoiding unnecessary waste resource allocation and costs. It will also decrease the threat of time-consuming and expensive future litigation. An ideal FTO search offers an opportunity for design development to the company or the inventor. Since the process executes in the early developmental phase, it saves an enormous amount of money or time dumped into the process.
FTO patent searching also underlines the license opportunities for the existing technologies, products, or designs, saving time and decreasing the future patent threat litigation from getting going. Various companies or organizations, especially startups, get reassurance and confidence to the potential shareholders and investors through this search. FTO concentrates primarily on the active and existing patents and not on the non-patent or prior art literature.
Remember the FTO search scope for covering all the countries jurisdictions in which the company or the investor plans to sell, make, or import the product, design, or technology. It might make the FTO search more costly and complicated.
Differences Between Patentability And Freedom To Operate Search
Though both patentability and FTO searches sound similar, they are quite different from each other. A patentability search should cover all the publications, including non-patent and prior art literature, to decide whether the process or the product at issue is novel and can carry forward in the patent application procedure. On the other hand, freedom to operate search concentrates primarily on the patents as it is the only active patent that will give the right to hold the permission for pursuing the litigation. Now let us check out the primary differences between the two searching processes, which are:
Grants patent and patent applications only in some cases.
Determine if there are any existing active patent presents that might restrict or prevent the invention owner from imprinting, selling, or making the product, technology, or design.
It is generally more time consuming, costly and complicated.
All the Non-patent and prior art literature will get the publication.
Determines whether the owner will get a patent for his/her invention or not.
Usually inexpensive and faster.
Analysis Of Freedom To Operate Search
The analysis of freedom to operate search is the examination of the search results that concentrates primarily on the patent claims. During this tenure, the other patent elements like the drawing and other specifications are less significant since it will be the patent claim demarcating the patent legal scope. In this scenario, there might be a requirement for a professional patent lawyer who will examine the claims and determine the authenticity through their expertise and experience. It might also be a reason the freedom to operate search cost is higher than the other patent searching process like the patentability search.
You should also notice that an in-depth FTO search might involve different pending applications for patents. Although this might help in offering the possible situation picture in the near future, this data might end up being more hypothetically in nature. It might happen since the pending patent application status can alter anytime.
What Is The Opinion Of FTO?
An FTO opinion is a type of written document stating a patent lawyer's legal point of view. It will describe in detail if your invention has infringed any process or product. Although this searching process is quite expensive, an FTO opinion might be a worthwhile investment, especially when the litigation is already present in the industry. An FTO opinion can also be a requirement if the organization or the inventor is searching for outside investment. An FTO opinion can successfully reduce all the risks of patent application rejections. Other than this, FTO also offers:
Shareholder or investor mitigation about the infringement risk.
Protection help against willful infringement charges by displaying an attempt in the due diligence
Report Of Freedom To Operate Search
The FTO search patent generally consists of FTO search analysis, opinion and results. It will be an organization or inventor’s valuable resource, especially if you have hired an IP patent lawyer for completing the early report during the technology, design, or product development. It will give sufficient time for a workaround or other solution development, minimizing the wasted resources. If there is any potential risk present, then you might find the additional information in the FTO report like:
Non-infringement opinion offers additional details about the product or process that might infringe on the patent. You might implement it to have a better patent understanding for asserting against the procedure at issue and assessing the patent strength.
An invalidity opinion examines the patent validity during the issues and evaluates if it might be possible to kill the patent with invalidity processes.
In the end, we can conclude this write-up by saying that you will never know whether you will be able to make a profit from your invention or not if you do not conduct an FTO search. You might do this on your own or can hire a professional company to execute the job.